Just what is this “wallpaper” stuff?
In Part 1 and Part 2 of this series of Blog posts, I touched on various legal concerns and common misconceptions related to the use of images on the internet. Continuing from an earlier point, one of the more routine conversations I have with parties who use imagery in the online world is their (often detrimental) reliance on “free” images, and particularly a “free image” or “free download” from a “wallpaper” site.
Initially, it might help to gain an understanding of what “wallpaper” is in the internet sense – Wikipedia provides a useful description:
In computers and mobile communications devices, wallpaper (also desktop picture and desktop background) is an image used as a background of a graphical user interface on a computer screen or mobile communications device. On a computer it is usually for the desktop, while for a mobile phone it is usually the background for the 'home' or 'idle' screen. Though most devices come with a default picture, users can usually change it to files of their choosing. "Wallpaper" is the term used in Microsoft Windows before Windows Vista (where it is called the Desktop "Background")...
I have taken the liberty to emphasize terms like “desktop” and “background”, as they are critical in understanding the difference of using a “free wallpaper” image on a desktop or phone screen background versus making the same image available on a website for the internet and public at large. A comparable old school analogy is using a VCR to record a television show on a tape that is watched later on in one’s own home versus playing the same recording in a public venue. The former is clearly a discernible personal use, the latter clearly not and is more akin to a public display. Either one may be an infringement, but it is indisputable the right to public display of an image is within the province of the copyright holder.
So in general, and with respect to the most typical instance, an image advertised as “free” from a wallpaper-style website is intended to be limited to personal use, such as a desktop or background image. Or in the legal sense, the image is available for use subject to a significantly limited non-exclusive license. For additional context, let’s look at some examples:
Upon arriving on the homepage of this site it is plainly evident there is nothing in big, bold letters advertising the use of “free images” or “free wallpaper”. On the other hand, the site does offer “download” ability of various wallpaper images in numerous categories and provides an extensive Terms of Service. Here, the Terms are convoluted, but do indicate a use of any wallpaper image requires a software download, and that the user will be subjected to advertising as a result thereof. On appearance, this site epitomizes wallpaper image sites that monetize off advertising. That is, it is a perfect example of where the apparent intent of the site is to draw in a user with media (i.e., free images), and by way of subsequent distribution of the media, subject the user to advertising.
Are images on this site there legitimately? It is hard to know for sure. Ultimately a user of this site and any of its images (or any site like it) is responsible for that choice, as the Terms provide no protection whatsoever to the user. See Part 2 that talks about assumption of risk.
The Hiren site interests me because I have seen numerous instances of clients’ work being present on it. Upon arrival at the homepage, this site does not strike me as one most people come across from a keyword search, but it clearly offers wallpaper images, including those that would show up via an image search. More problematic is that the site appears hosted outside the U.S., namely the UK. Without taking a close look, images from this site might seem free for the taking, as it says “All of this media has been found on sites claiming it is public domain.” However, the small print also says, “These [images] may only be downloaded for personal use as a desktop wallpaper.” Moreover, any implied license is based on international or UK law, not necessarily US. And regrettably, only the rights owner can grant a legitimate license.
In summary, this site screams “stay away” to any person paying attention to the detail. But to someone who sees what they want to see, and hears what they want to hear – “free” or “public domain” – it is problematic at best.
When it comes to “wallpaper” or “free image” sites, I could go on in trying to assess whether such sites are legitimate, offer legitimate licensing, offer legitimate protection to users, and so forth, but it would be never-ending. Ultimately the main point remains: use at your own risk; you assume responsibility associated with using an image, including terms related thereto.
The prior examples underscore two additional points worth comment: one, image or wallpaper websites exist for a reason, and I have my doubts that it is to be a benevolent beneficiary to the public at large. Whether it’s redirect of web traffic, hits, clicks, ads, or something more nefarious, like malware, like a light for a moth, images provide a means to that end. These sites can be operated with little to no overhead, and the ability to “scrape” images from anywhere on the internet and reproduce onto a single website, no matter how illegitimate, is too attractive for some to pass up.
Two, and related to one, is the prevalence for these sites to be owned or operated outside the legal boundaries of the United States. So the ability for any single right holder here in the US to stop a website from using his/her image, let alone stop the website as a whole, is all but nil. These first characteristics related to wallpaper beg my next question.
Where did all of this wallpaper come from in the first place?
It is not by accident that an image shows up on the internet as it must originate from somewhere. Of course, once an image appears on the internet, the ability to replicate is unquestionable and more or less unstoppable – after all, in its digitized form an image is nothing but a pattern of 1’s and 0’s.
So what is the answer? Hard to say with any degree of certainty. In the end, it does not matter as the person or entity using an image is ultimately responsible for obtaining legitimate permission for the use. One suggestion I have read internet talking heads refer to is acts of “seeding” the internet. This kool aid train of thought seeks to provide an answer to a question by removing accountability from those that use images. It is comparable to saying musicians and recording labels “seeded” Napster so everyone would be able to use Napster to illegally share files.
While I find the notion of ‘seeding’ uninformed, it is not because of activity, but instead because of context. What I mean is, it is wholly permissible for a copyright owner to put their content on the internet for use. So even if a photographer puts images on a legitimate wallpaper site, so what?
In talking with photographers, including my own clients, I have discovered one ‘ground zero’ as to the uncontrolled distribution of images, and it pertained to the early 2000’s and use of a company or site known as webshots.com (“Webshots”). Now, as that site exists today, it is noticeably a “free desktop wallpaper” site, albeit subject to download of software and other technical implementations that prevent indiscriminate copying. In other words, it appears as a legitimate wallpaper image site that provides express and significant limitations on how any such images may be used.
However, this was not necessarily the case a decade ago. At that time, the internet was both a blessing and a curse to photographers – on the one hand, the internet provided easability for sharing images. On the other hand, anyone, including amateurs, could share work, and with the rise of cheap stock photo, pressure increased to maintain revenue, ultimately compelling photographers to consider new and alternative revenue streams related to use of the internet.
In regard to Webshots, the bargain for photographers was a very reasonable fee in exchange for permission to use images on a “Screensaver” CD(s) that was distributed to computer owners and the like, where end user (customer) permission was limited to screensaver or wallpaper purposes (i.e., personal desktop background image). Unfortunately, just as songs from a music CD were “ripped” into a digital file freely shared by the end-user, so were photos from image CDs. Professional photographer images found “all over the internet” today are traceable back to this type of CD distribution.
This is not to say that Webshots was a bad actor in any way; however, the combination of human nature (i.e., to take for free what is easy to take), lack of technological barriers to prevent ripping, and shortsightedness were all likely contributing factors to the eventual distribution of images now found today on numerous “wallpaper” sites.
So what are the takeaways from these posts? When it comes to using images on the internet:
1) if you do not own it and/or did not create it, you need permission to use it.
2) you assume the risk of using any image you need permission to use – only the rights owner can give legitimate permission.
3) you can mitigate risk by looking for or seeking indemnification terms and the like.
4) if it says "free", be skeptical.
4) if it says "free", be skeptical.
 17 U.S. Code § 106 (5) (“the owner of copyright under this title has the exclusive rights to do and to authorize…display [of] the copyrighted work publicly”)
 Or put another way, the content of the Hiren site would likely not rate high in any keyword search; however, the images of the Hiren site would undoubtedly rate high in an image search (e.g., using images.google.com)
 The ability to ‘track’ or ‘search’ for an image stems from the fact that the image is nothing but a searchable pattern of 1’s and 0’s, albeit in millions, billions, gazillions, etc. of 1’s and 0’s
 See http://www.webshots.com; again, extensive and convoluted terms and small print, but does expressly state that use of the Site and App is for “personal, non-commercial use” and downloaded images are “available on the Desktop App for use as a screensaver/wallpaper for your computer” and “on the Mobile App for use as mobile wallpaper”.